Justice Scalia recently argued on originalist grounds that the 14th amendment equal protection clause does not protect against gender based discrimination. As Adam Cohen argues, this view is inconsistent with 40 years of Supreme Court precedent. Scott Lemieux argues that a more direct and justifiable textualist reading of the 14th amendment is superior to Scalia’s originalist argument while pointing out what he sees as important flaws in Scalia’s overall position.
After reading these accounts of Scalia’s talk at Hastings Law School, I don’t expect that he will vote to uphold the district court decision in Perry v Schwarzenegger if the case reaches the Supreme Court. However, we could ask whether Scalia’s speech at Hastings offers more support for the attitudinalist model of Supreme Court behavior, or to the legalist account? I think you could find support for both models in this particular talk as policy preferences seem inextricably linked to Scalia’s version of originalism, as Lemieux’s contrast between Scalia’s treatment of race and gender under the 14th amendment suggests.
I also think that if we applied “nobody thought it was directed against sex discrimination” originalism to first amendment law in Citizens United that Scalia would have had to have voted to uphold campaign finance restrictions on corporations. I’m confident nobody who framed or ratified the speech clause of the first amendment thought it was directed at protecting the right of the sovereign wealth fund of Dubai to anonymously spend unlimited funds to sway the outcomes in American national elections.
Update: A more in depth criticism of Scalia’s argument at Balkinization.